Henry #674132 v. Bergeron et al

Filing 170

ORDER ADOPTING REPORT AND RECOMMENDATION 166 re 137 : Defendants' Motion for Summary Judgment is DENIED; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION

XAVIER HENRY,
Plaintiff,
v.

Case No. 2:15-CV-197

UNKNOWN BERGERON, et al.,

HON. GORDON J. QUIST

Defendants.
___________________________/
ORDER ADOPTING
REPORT AND RECOMMENDATION
State prisoner Xavier Henry filed a civil rights action under 42 U.S.C. § 1983 against
Defendants Bergeron, Johnson, and Rosebrock. Defendants filed a motion for summary judgment
on Henry’s one surviving claim—his Eighth Amendment claim. (ECF No. 55.) Henry responded.
(ECF No. 149.) Magistrate Judge Timothy Greeley issued a Report and Recommendation (R &
R), recommending that the Court deny Defendants’ motion. (ECF No. 166.) Defendants objected
(ECF No. 167), and Henry responded to their objection. (ECF No. 169.)
Under Federal Rule of Civil Procedure 72(b), a party “may serve and file specific written
objections” to the R & R, and the Court is to consider any proper objection. Local Rule 72.3(b)
likewise requires that written objections “shall specifically identify the portions” of the R & R to
which a party objects. Under 28 U.S.C. § 636(b), upon receiving objections to a report and
recommendation, the district judge “shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is made.” After
conducting a de novo review of the R & R, Defendants’ Objections, and the pertinent portions of
the record, the Court concludes that the R & R should be adopted.

The R & R found that there was a genuine question of material fact regarding whether
Henry asked the Defendants for access to the dining hall, whether he told the Defendants that he
was starving and requested food delivery, whether Henry’s state-issued shorts were torn, and
whether Henry could have gone to the dining hall in sweatpants or whether he was denied entry.
Accordingly, the R & R concluded that these factual disputes were enough for Henry’s claim to
survive, to call into question whether the Defendants would be entitled to qualified immunity, and,
therefore, to defeat a motion for summary judgment. (ECF No. 166 at PageID.754–55.)
Defendants argue that the R & R was incorrect, in that Henry admitted in his deposition
that he did not request anyone to waive the pants requirement to go to the dining hall. Defendants
cite page 35 of Henry’s deposition. (ECF No. 167 at PageID.757.) As the R & R noted,
Defendants have only submitted excerpts of Henry’s deposition to the Court. (See ECF No. 373.) Page 35 was not included among the excerpts. Defendant’s own characterization of the missing
pages carries no weight.
Page 26 is included in the deposition excerpts. On page 26, Henry specifically states that
he told Bergeron, Johnson, and Rosebrock that “without these [pants] . . . I can’t go to the chow
hall in my sweatpants . . . I told [Johnson], I said, can you check for some pants for me so I could
go to chow hall or can you order me a tray [of food]?” (ECF No. 138-3 at PageID.640.) Henry’s
deposition testimony claims that he told the guards he could not go to the dining hall in his
sweatpants, asked for new pants, and asked for a tray of food. Other available parts of the
deposition support Henry’s argument and recounting of Henry’s version of the facts.
Defendants also argue that Henry did not miss 24 consecutive meals because he admitted
in his complaint that he was able to buy ramen noodles and paid someone to bring him food from
the dining hall. This does not resolve a material question underlying Henry’s claim, i.e., whether

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the food he was able to obtain “was sufficient to maintain normal health.” Cunningham v. Jones,
667 F.2d 565 (6th Cir. 1982.)
There is a genuine issue of material fact given the differences between Henry’s and
Defendants’ characterization of the events, and therefore the R & R will be approved.
Accordingly,
IT IS HEREBY ORDERED that the Magistrate Judge’s Report and Recommendation
(ECF No. 166) is APPROVED AND ADOPTED as the Opinion of this Court, and Defendants’
Objections are OVERRULED. (ECF No. 167.)
IT IS FURTHER ORDERED that Defendants’ Motion for Summary Judgment is
DENIED. (ECF No. 137.)

Dated: March 9, 2018

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE

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